466 P.3d 682
Or. Ct. App.2020Background
- Plaintiff was a passenger in a truck struck first by Turner and then, shortly after, by Oliver; plaintiff sued for underinsured motorist (UIM) benefits under a policy with a $500,000 per-accident limit.
- First trial produced a $979,540.06 verdict for plaintiff; defendant appealed arguing the number of "accidents" governed the per-accident limit.
- On appeal, the Court of Appeals (Wright I) held only one accident as a matter of law; the Oregon Supreme Court reversed (Wright II), ruling that whether there were one or two "accidents" is a factual question for a jury and remanded for further proceedings.
- On remand the trial court initially placed on plaintiff the burden to prove number of accidents and allocation of damages, but later instructed the jury that if damages were indivisible the insurer (defendant) had the burden to prove apportionment and that the jury need not apportion damages if it found them indivisible.
- The jury found two accidents and that damages could not be apportioned, and the trial court entered judgment for the full award; defendant appealed the instruction and burden allocation.
- The Court of Appeals reversed: it held the per-accident limit is part of the statutory grant of UIM coverage (so the insured bears the burden to prove coverage, including number of accidents and apportionment), and the trial court erred by shifting the apportionment burden to the insurer and by allowing a verdict for full damages without apportionment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the burden to prove how many accidents occurred and the allocation of damages per accident? | Plaintiff argued once causation and that multiple tortfeasors caused harm, precedent allows full recovery where harm is indivisible (insurer should bear burden). | Defendant argued insured must prove coverage and thus the number of accidents and allocation; alternatively, remand should let jury decide all facts including damages. | Held: The per-accident "limit of liability" is part of the statutory grant of UIM coverage; the insured (plaintiff) bears the burden to prove number of accidents and to apportion damages per accident. |
| Whether the jury may award the entire damages if it finds injuries "indivisible" rather than apportioning between two accidents? | Plaintiff: jury should be allowed to find indivisibility and award full damages against insurer if tortfeasors caused the harm. | Defendant: insurer is entitled to apportionment because policy limits recovery per accident; absent proof by insured, insurer should not pay more than per-accident limit. | Held: Trial court erred by instructing jury that it could decline to apportion and award full damages; if two accidents are found, the insured must prove apportionment; jury must apportion damages per accident. |
| Scope of remand: whether appellate court should enter judgment for one limit or remand for further jury determination of apportionment | Plaintiff sought a limited remand only to decide number of accidents. | Defendant argued remand should include damages per accident and all factual issues; alternatively, move for judgment limited to one policy limit. | Held: Number of accidents and damages per accident are factual questions for a jury; the case is reversed and remanded for a jury to determine apportionment with plaintiff bearing the burden. |
Key Cases Cited
- Wright v. Turner, 253 Or App 18 (Court of Appeals decision addressing number-of-accidents issue)
- Wright v. Turner, 354 Or 815 (Oreg. 2014) (Supreme Court: whether circumstances constitute more than one "accident" is a question of fact)
- FountainCourt Homeowners v. FountainCourt Develop., 360 Or 341 (2016) (insurer bears burden to prove exclusions)
- Employers Ins. of Wausau v. Tektronix, Inc., 211 Or App 485 (policy interpretation principles; insurance burdens)
- ZRZ Realty v. Beneficial Fire & Casualty Ins., 222 Or App 453 (allocation of burden depends on whether provision is coverage or exclusion)
- Sherertz v. Brownstein Rask, 288 Or App 719 (reversal required when instructional error likely influenced verdict)
- Interstate Fire v. Archdiocese of Portland in Oregon, 318 Or 110 (tort principles apply to policy terms only when policy implicates them)
- Estate of Michelle Schwarz v. Philip Morris Inc., 348 Or 442 (courts should not substitute their view of damages for a properly instructed jury)